Barry Boss, co-chair of the ABA Criminal Justice Section’s Sentencing Committee, told Linda Greenhouse of the New York Times that the defense bar was watching the case to determine what kind of vitality the sentencing guidelines have following the Supreme Court’s ruling in United States v. Booker, 125 S. Ct. 738.

The 2005 opinion held the guidelines violated defendants’ Sixth Amendment right to jury trials because they allowed judges to set sentences based on facts jurors never heard. Justice Stephen G. Breyer, a former member of the U.S. Sentencing Commission, wrote a remedy portion of Booker that made the guidelines advisory, allowing them to survive despite a ruling they were unconstitutional.

Breyer wrote the majority opinion in Rita. Boss says it shows the guidelines are still alive. “Clearly, the guidelines are here to stay,” he says.